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upholding three life-without-parole sentences for one juvenile convicted on three counts of first-degree murder
Summary of this case from State v. NullOpinion
B224505
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANGELO MAURICIO, Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. TA088962)
APPEAL from a judgment of the Superior Court of Los Angeles County. Eleanor J. Hunter, Judge. Affirmed as modified.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael Angelo Mauricio of three counts of first degree murder (Pen. Code, § 187, subd. (a)) arising from two separate driveby, gang-involved shootings. The jury's guilty verdicts included special circumstance findings as to each count that the murder was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), and that Mauricio intentionally killed the victim while an active participant in a street gang (§ 190.2, subd. (a)(22)), and that he had committed multiple murders (§ 190.2, subd. (a)(3)). The jury further found as to each murder count that a principal had personally used a firearm (§ 12022.53, subds. (b) & (e)), and had personally discharged a firearm (§ 12022.53, subds. (c) & (e)) and had done so causing great bodily injury and death (§ 12022.53, subds. (d) & (e)), and that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). The trial court sentenced Mauricio to three consecutive terms of life without the possibility of parole (LWOP), plus three consecutive indeterminate of term of 25 years to life, one as to each murder count, for the attached findings that a principal had personally discharged a firearm causing death. We modify various fines and fees, and, as modified, affirm the judgment.
All further references are to the Penal Code unless otherwise indicated.
FACTS
1. The Murder Near Lueders Park
On November 6, 2006, murder victim Jeffrey Shade and others were sitting around in Lueders Park in Compton. Shade was in his mid-40's and had been affiliated with the Lueders Park Pirus, a "Bloods" street gang, throughout his adult life. He was wearing a red bandana on his head. At some point, Shade left on a bicycle to go to a liquor store near Rosecrans Avenue and Bradfield Avenue, about a block away. As Shade was riding on Rosecrans back to the park, a black Impala drove by slowly, and the front passenger in the car fired four to six shots at Shade. Shade died from a gunshot wound that entered his left side and lodged in his heart.
2. The Bus Bench Shooting
On November 19, 2006, a gray, four-door vehicle drove by a bus stop bench near Rosecrans Avenue and Bradfield Avenue, and multiple gunshots were fired in the direction of Shudray Jenkins and Deaundre Hunt. Both were killed. Deputies from the Los Angeles County Sheriff's Department (LACSD) responded to the crime scene where they recovered shotgun wadding from the bus stop bench and an adjacent planter. An eyewitness reported to deputies that the shooters were in a Taurus. At trial, the eyewitness testified the shooters had been in an "Oldsmobile Cutlass, something along the lines of that." Jenkins suffered three gunshot wounds and died from a fatal gunshot wound to her neck. A bullet was recovered from that wound. Hunt suffered seven gunshot wounds, most of which were fatal. Five bullets, along with shotgun pellets were recovered from his body.
3. Mauricio's Arrest and Interviews
On December 4, 2006, LACSD Deputy Albert Carrillo and his partner were driving on patrol in the area near Holly Avenue and Locust Circle in Compton when Deputy Carrillo's attention was caught by a black, four-door Chevy Impala with tinted windows stopped at the curb with only its parking lights on. As the deputies got nearer the Impala, Deputy Carrillo saw the vehicle was occupied "with quite a few people," and he saw that the front passenger, later identified as Daniel Riley, was holding a rifle.
Deputy Carrillo stopped near the Impala, exited his patrol car, drew his weapon, and ordered the occupants of the vehicle to show their hands. The driver, later identified as Mauricio, tried to start the car, but it shut down. Besides Mauricio and Riley in front, there were three passengers, Gerald Edwards, James Hicks, and Deonna Lewis, sitting in the back seat of the car. The deputies secured the rifle, a .223-caliber Ruger model Mini-14, and found that it was loaded. The letters "WLC" — for the Ward Lane Crips gang — was scratched into the stock. Mauricio was arrested.
On December 5, 2006, LACSD Detective Peter Hecht interviewed Mauricio about what he and his companions had been doing with a rifle in the car at Holly Avenue and Locust Circle. Mauricio waived his Miranda rights and agreed to talk to the detective. Mauricio stated that he and the others, and Victor Preciado, were members of the Ward Lane Crips. He said that they had met earlier in the day and talked about a shooting that occurred a few days earlier in which Riley's girlfriend and M.B. were shot. Mauricio and the others thought that someone from the Holly Hood Pirus gang did the earlier shooting, and so they formed a plan to retaliate by shooting any Holly Hood Pirus gang member they could find. Preciado stayed behind while the others had gone to the area near Holly and Locust to look for a Holly Hood Pirus gang member to shoot.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
On December 1, 2006, deputies responded to Ward Lane where they found three gunshot victims, one of whom was M.B.
Later in December 2006, Mauricio was charged with "conspiracy." At some point before February 5, 2007, Mauricio "took a deal" for "nine months."
Several days after interviewing Mauricio, Detective Hecht and other deputies executed a search warrant at Victor Preciado's residence. During the search, the deputies recovered .223-caliber bullets from Preciado's bedroom closet. When deputies searched a black Impala at the location, they recovered four spent .223-caliber bullet casings, one spent .380-caliber bullet casing, and two live .25-caliber bullets. The black Impala was registered to Preciado's mother.
Meanwhile, LACSD Detectives Brian Schoonmaker and Kevin Lowe were investigating the November 19, 2006 double murders at the bus bench. On February 5, 2007, as part of their investigation, Detectives Schoonmaker and Lowe interviewed Mauricio at the Challenger Juvenile Camp. A CD recording of the interview was played for the jury at trial. A transcript of the interview was marked as evidence and provided to the jurors to assist them in following the CD. The transcripts were collected after the CD was played, and the trial court told the jurors that "what really [was] in evidence [was] the CD itself." A detailed account of the circumstances surrounding, and the content of, Mauricio's interview on February 5, 2007, is set forth below in addressing his claim on appeal that the trial court erred in denying his objection to the interview. Reviewed under the substantial evidence test, Mauricio's final interview established that he was present at the bus bench shooting and the Lueders Park shooting, and that he had encouraged and helped in both shootings.
Between Mauricio's initial interview on December 5, 2006, shortly after his arrest, and his last interview on February 5, 2007, different deputies also interviewed Mauricio on December 21, 2006, and January 10, 2007, both times at Los Padrinos Juvenile Hall. Evidence of these two book-ended interviews was not presented at trial, and, thus, are not summarized here. The content of Mauricio's interviews on December 21, 2006, and on January 10, 2007, was developed and considered at a hearing on his objection to any use of statements from his final interview on February 5, 2007. We address the content of the in-between interviews below in addressing Mauricio's claim on appeal that his statements in his final interview on February 5, 2007, should have been excluded.
4. The Criminal Case
In September 2007, the People filed an information charging Mauricio and Victor Preciado with the murder of Shudray Jenkins (count 2; § 187, subd. (a)), the murder of Deaundre Hunt (count 3; § 187, subd. (a)), and the murder of Jeffrey Shade (count 4; § 187, subd. (a)). Each of the three murder counts included special circumstance allegations that the murder was perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)), that Mauricio intentionally killed the victim while an active participant in a street gang (§ 190.2, subd. (a)(22)), and that he committed multiple murders (§ 190.2, subd. (a)(3)). Each of the three murder counts also included allegations that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)), that a principal personally discharged (§ 12022.53, subds. (c) & (e)), and that the discharge caused great bodily injury and death (§ 12022.53, subds. (d) & (e)), and that the offense was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The information originally included a count 1 alleging another murder. That count was dismissed as to Mauricio prior to trial and is not an issue on this appeal.
In January 2010, the charges against Mauricio were tried to a jury. The testimony of a number of eyewitnesses to the two separate shootings provided general descriptions of the incidents, i.e., a vehicle drove by and shots were fired at victims. None of the eyewitnesses directly identified Mauricio. Ballistics evidence established that the four spent bullet casings found in the Impala during the search at Preciado's residence, and three bullet fragments recovered from the bus bench shooting victim Hunt were fired by the Mini-14 rifle found in the car being driven by Mauricio at the time of his arrest on December 4, 2006. Bullet fragments recovered from the other bus bench shooting victim, Jenkins, and from the body of the Lueders Park shooting victim, Shade, had similar rifling as bullets fired from the Mini-14 rifle.
Preciado was tried later in 2010, and convicted on all four murder counts. He has a separate appeal pending in our court. (Case No. B226362.)
Mauricio's interview of February 5, 2007, was played for the jury. Deputy Gail Durham testified as a gang expert. Mauricio did not present any defense evidence. His trial counsel argued to the jury that the case against Mauricio was "based entirely" on his February 5, 2007 interview, and that the statements that he made during that interview implicating himself in the two shootings resulted from suggestions by the interrogating officers.
On January 19, 2010, the jury returned verdicts finding Mauricio guilty on all three murder counts as charged, with the special circumstance and firearm findings noted at the outset of his opinion. On May 11, 2010, the trial court sentenced Mauricio as noted at the outset of his opinion. Various fines and fees were also imposed.
Mauricio filed a timely notice of appeal.
DISCUSSION
I. The Interview Issue
Mauricio contends his murder convictions must be reversed because the trial court erred in denying his objection to the prosecution's use of his February 5, 2007 interview. We disagree.
A. The Governing Law
Police may not interrogate a suspect who is in custody until the suspect is advised of his or her right to remain silent and right to an attorney, and the suspect knowingly and voluntarily waives those rights. (See Miranda, supra, 384 US. at p. 444; see, e.g., People v. Bradford (1997) 14 Cal.4th 1005, 1033.) A suspect who waives his or her Miranda rights retains the right to control the subjects to be discussed, and the length of the interrogation, by "cut[ting] off questioning" at any point. (See Michigan v. Mosley (1975) 423 U.S. 96, 103-104; see also Berghuis v. Thompkins (2010) _ U.S. _ [130 S.Ct. 2250, 2260].)
In addressing whether the trial court erred in denying an objection to the use of a defendant's statements as being obtained in violation of Miranda, a reviewing court must accept the trial court's resolution of disputed facts, and the reasonable inferences drawn from the facts, where supported by substantial evidence; a reviewing court independently determines from the historically fixed facts whether a challenged statement was obtained in violation of Miranda. (People v. Bradford, supra, 14 Cal.4th at p. 1033.)
B. The Hearing on the Use of the Interviews
Prior to trial, the prosecution signaled that it intended to introduce evidence of Mauricio's interviews of December 5, 2006, December 21, 2006, January 10, 2007, and February 5, 2007. When Mauricio's case was called for trial, the trial court took up the issue of Mauricio's objection to the interviews on December 21, 2006, January 10, 2007, and February 5, 2007. Mauricio's counsel argued: (1) at the time of the interviews on December 21, 2006, and January 10, 2007, Mauricio had been represented by counsel in his conspiracy case involving the Mini-14 rifle in the car he had been driving (the "conspiracy" case) and could not be interviewed in connection with that case without approval from his counsel; (2) the parallel murder investigation had a factual and contemporaneous relationship to the conspiracy case in that the rifle found in the car at the time of Mauricio's arrest was the rifle used in the two driveby shootings; (3) due to the nexus between the conspiracy and murder matters, police should not have talked to Mauricio on any subject without first obtaining approval from his counsel in the conspiracy case; (4) the police in any event did not Mirandize Mauricio before they interviewed him on December 21, 2006, or on January 10, 2007; and (5) the problems with the interviews on December 21, 2006, and January 10, 2007, caused a "fruit of the poisonous tree" taint for the final interview on February 5, 2007, defeating any conclusion that Mauricio gave a knowing and voluntary waiver of his Miranda rights for that final interview. The trial court found that Mauricio expressly waived his Miranda rights at the time of his final interview on February 5, 2007, which took place after his conspiracy case was ended, and that evidence of the final interview could be used at trial by the prosecution.
On appeal, Mauricio's claim is a bit different. He contends that he did not at the time of his final interview on February 5, 2007, waive his Miranda rights to talk insofar as his involvement in the murders was concerned, and that he only agreed to discuss other subjects. We now turn to that issue.
C. Forfeiture
Before taking up Mauricio's "selective Miranda waiver" claim of error, we must address the People's argument that Mauricio forfeited the issue he raises on appeal in that he did not assert such a ground for objection in the trial court. We agree with the People that Mauricio's claim is forfeited on his appeal. (People v. Randle (2008) 43 Cal.4th 76, 116, 121, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) To avoid denial of review of his claim of error, Mauricio argues his trial counsel was ineffective in failing to argue that Mauricio only waived his Miranda right to remain on selective issues. In order to resolve his claim of ineffective assistance of counsel, we will address Mauricio's Miranda claim within the rubric governing claims for ineffective assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668; see, e.g., People v. Williams (1997) 16 Cal.4th 153, 215.) Under this rubric, we consider whether trial counsel performed deficiently in failing to assert the ground for objection argued on appeal, and whether it is reasonably probable that making such an objection would have resulted in different outcome at Mauricio's trial. We find no ineffective assistance of counsel because, if a "selective Miranda waiver" ground had been asserted below, the trial court would have properly denied the objection.
D. The Interviews
i. Mauricio's Initial Interview on December 5, 2006
As noted above, deputies arrested Mauricio on December 4, 2006, when they found him and fellow gang members, one of whom was holding a rifle, in a car near Holly and Locust. On December 5, 2006, Mauricio gave a statement implicating himself and the others in the car, along with Victor Preciado, in a conspiracy to shoot any Holly Hood Pirus gang member that he and his cohorts in the car had been able to find. There was no objection to this interview at trial, and no claim or showing on appeal that this interview was improperly admitted.
ii. Mauricio's Second Interview on December 21, 2006
As noted, Detectives Schoonmaker and Lowe were investigating the double murder at the bus bench while Mauricio's conspiracy case was pending. On December 21, 2006, Detective Schoonmaker interviewed Mauricio at Los Padrinos Juvenile Hall as a person who possibly had information about the murders. At the start of the interview, the detective explained to Mauricio that he was "working on a couple of cases in Compton," and that he was "wondering if [Mauricio] knew anything about one of 'em. [T]he two Bloods that were killed at the bus bench on Rosecrans?"
Mauricio said that he had overheard someone talking about the shooting. Detective Schoonmaker asked Mauricio if he was in the car when Preciado did the shooting. Mauricio denied any involvement. The detective then asked Mauricio if he ever heard "Tony Boy," i.e., Victor Preciado, bragging about the shooting. Mauricio told Detective Schoonmaker that Tony Boy had claimed credit for shooting "two Die-rus," "a girl and a boy," at a bus bench. Mauricio said Preciado used a "big gun" (a rifle) that was "[l]ike the one we . . . got caught with." In response to this comment, Detective Schoonmaker said, "I don't know about that and I'm not even here for that so, I'm not going to use anything against you." Detective Schoonmaker questioned Mauricio about what kind of weapon Preciado had used - whether a shotgun or an assault-type rifle had been employed. When the detective asked whether Preciado had mentioned anyone else's name as being involved, because there had to be "somebody driving and somebody shootin'," Mauricio said he did not recall. Detective Schoonmaker then asked Mauricio if he had been driving, and Mauricio again denied any involvement. At the end of the interview, Detective Schoonmaker told Mauricio that he was good friends with Detective Hecht who was working on Mauricio's conspiracy case arising from the stop in the car with the rifle. Detective Schoonmaker said that if what Mauricio had stated turned out to be true, and that, if Mauricio had any other information that would help solve a double murder, then he would put in a "good word" on Mauricio's behalf with Detective Hecht.
iii. Mauricio's Third Interview on January 10, 2007
On January 10, 2007, LACSD Detectives Michael Caouette, Karen Shonka, and Peter Hecht interviewed Mauricio at Los Padrinos Juvenile hall. The transcript which was reviewed by the trial court, and which is before us on appeal, suggests that the transcription began after the interview was already underway. It does not show any Miranda warnings given to Mauricio.
The transcript jumps right in with questions that appear to be follow-up to earlier, nontranscribed questions.
During the interview, Mauricio admitted he had been the driver of the car used in the shooting at Lueders Park. Mauricio stated that Preciado was the shooter, and Daniel Riley ("Tilt") was in the front passenger seat. Mauricio continued to deny any involvement in the bus bench shootings. Mauricio said that on the day he was arrested while going out to shoot a Holly Hood Pirus gang member, it was Preciado's idea to do a shooting.
iv. Mauricio's Final Interview on February 5, 2007
On February 5, 2007, after Mauricio's conspiracy case had been resolved, he was interviewed by Detectives Brian Schoonmaker and Kevin Lowe. At the beginning of the interview, Detective Schoonmaker advised Mauricio of his Miranda rights, and asked Mauricio whether he knew those rights. Mauricio answered, "Yes, sir." Detective Schoonmaker then explained: "Basically, I wanted to ask you a couple of questions
about what we already talked about. [Do you] want to answer my questions about that?" (Italics added.) Mauricio answered: "Yes." The detective explained that when "[d]oing an investigation, especially a double murder," it was common to talk to "a whole bunch of people," and then "circle around" and ask the same people more questions to get more information. Detective Lowe then added that Victor Preciado was "locked up," and had given "some information which [did not] match the information [Mauricio] gave . . . . So somebody's bullshittin'." Detective Schoonmaker continued: "Well, the problem what it is for you, is that Victor changed the story around a little bit and put you in the car. [¶] . . . [¶] . . . That's what we gotta get straightened out." Detective Lowe directly asked Mauricio: "You understand what case we're here on, right? 'Cause there's different shootings, we're here on the double. At the bus bench." And Mauricio answered: "I know."
When Detective Schoonmaker interviewed Mauricio on December 21, 2006, the detective had specifically explained to Mauricio that he (the detective) wanted to know whether Mauricio knew anything about the double murder at the bus bench in Compton.
Detective Schoonmaker then explained that Preciado was "putting himself in the car," and that he was also was putting Mauricio in the car. The detective asked Mauricio, "[W]hy is Victor putting you in the car . . . ?" and asked Mauricio, "[W]hat's the real story?"
At that point, Mauricio said that he was not in the car with the shooters, but that he was in another car following the shooters' car. Mauricio explained that he was driving Preciado's Impala, and Riley was in the front passenger seat with Mauricio. There were no guns in the Impala. Gerald Edwards ("Man") was driving a gray Taurus that Mauricio believed had been stolen to be used in a shooting. Preciado was in the front passenger seat of the Taurus with a shotgun, and "Chris" was in the back seat of the Taurus with a rifle. Mauricio followed the Taurus. All of the sudden, the Taurus made a U-turn and approached the bus bench. Mauricio saw two people on the bus bench and knew they would be targets. Preciado and Chris fired. Mauricio sped away, followed by the Taurus. After both cars got back to Preciado's house, Preciado, Chris, and Edwards talked about how they thought they shot gang members from Lueders Park and Holly Hood. Preciado said he had wanted to retaliate against the Pirus for "hitting" up Preciado at his house. Before the shooting, Mauricio, Preciado, Riley, and Edwards had gone out in Preciado's Impala to steal the Taurus.
During the course of the interview, Mauricio also admitted his involvement in the Lueders Park driveby. Mauricio said that, for that shooting, he drove Preciado's Impala, and Preciado was in the front passenger seat. Riley was in the rear seat. Preciado had the rifle and was the shooter. Mauricio pulled up next to the victim, who was riding a bicycle, and slowed down so Preciado could get a shot. Mauricio heard three to four shots. Mauricio claimed that he had been a Ward Lane Crip for three years.
E. Analysis
Mauricio contends the record demonstrates that, at the time of his final interview on February 5, 2007, he "invoked his right to remain silent on all topics except what he previously discussed with [Detective] Schoonmaker in his first interview" on December 21, 2006, namely, "Preciado's involvement in and motive for the bus bench shooting." Mauricio argues that, because he "had not agreed to talk about anything new" at the time of the interview on February 5, 2007, Detectives Schoonmaker and Lowe "should have ceased questioning" on the subject of Mauricio's suspected involvement in the murders, "or obtained a valid waiver" which covered any questions concerning Mauricio's involvement in the murders. Mauricio argues the trial court erred in making a finding that Mauricio gave a valid waiver of his Miranda rights related to investigatory questions regarding his involvement in the murders. We disagree.
During the second interview on December 21, 2006, Detective Schoonmaker talked to Mauricio about the bus bench murders and particularly about Preciado's involvement in the shooting. The detective asked whether Mauricio had been involved, and he denied any involvement. Detective Schoonmaker told Mauricio that, if his information turned out to be true, then the detective would put a good word with the detectives working on Mauricio's conspiracy case. During the interview on February 5, 2007, Detectives Lowe and Schoonmaker told Mauricio they were there to talk to him "about what we already talked about.'' (Italics added.) In other words, they wanted to talk about the bus bench murders. Moreover, the detectives told Mauricio that the information which he had given did not mesh with a statement given by Preciado. The detectives said Preciado had put Mauricio in the car, and that they wanted to "straighten[] out" who was "bullshitting." Detective Lowe directly and specifically told Mauricio that the detectives were there to ask questions about the double murders at the bus bench. Mauricio expressly stated that he understood. We simply disagree with Mauricio that there is a factual basis for finding that he only waived his Miranda right as to subjects apart from his involvement in the bus bench murders, and that he had only agreed to talk about Preciado's involvement in the murders. In our view, there is only one reasonable conclusion to be drawn from the record, and that is that Mauricio agreed to talk the detectives about his involvement or his noninvolvement in the murders so that matters could be straightened out. That Mauricio implicated himself does not tend to suggest that he had not expressly agreed to talk about role in the murders.
We disagree with Mauricio that his case is like United States v. Soliz (9th Cir. 1997) 129 F.3d 499, and/or United States v. Lopez-Diaz (9th Cir. 1980) 630 F.2d 661. In Soliz, the defendant expressly agreed to make a statement "regarding [his] citizenship," and, when officers indicated they were going to ask questions about his "activities," he stated he "thought this was just about my citizenship." (Soliz, at p. 501.) The Ninth Circuit found the defendant gave a valid Miranda waiver only as to the issue of citizenship. (Soliz, at pp. 501, 503.) In Lopez-Diaz, the defendant made an express statement that he did not want to talk about drugs in a van in which he had been arrested, but officers asked about drugs anyway. (Lopez-Diaz, at p. 663.) The Ninth Circuit found the defendant had not given a valid Miranda waiver on the subject of drugs. In Mauricio's current case, he did not make any express statement that he only wanted to talk about Preciado's involvement in the murders, nor did he make any express statement that he did not want to discuss his own involvement.
Mauricio's argument that he made comments at the start of the February 5, 2007 interview that he did not want to talk about "new information," but only information on matters "previously discussed," is not persuasive for two reasons. First, there is no plain and unambiguous statement by Mauricio indicating that he wanted to limit the interview in any particular manner. (Berghuis v. Thompkins, supra, 130 S.Ct. at p. 2260.) Second, Mauricio had discussed the subject of his role in the murders during the first interview, albeit only to a limited extent. And Detective Schoonmaker, during the earlier interview, had indicated that Mauricio's information would be checked. He said that if it was accurate, then the detective would put in a good word for Mauricio on his conspiracy case. When Detectives Schoonmaker and Lowe returned later for the February 5, 2007 interview, we simply do not see that Mauricio attempted to frame only a selective scope of inquiry by the detectives, nor do we see that his answers suggested he wanted to limit the scope of the interview only to selected subjects.
We reject Mauricio's argument the record establishes that the detectives employed a deliberate "two-step" interrogation process that violated Miranda. (Missouri v. Seibert (2004) 542 U.S. 600, 622.) At the first interview by Detective Hecht on December 5, 2006, Mauricio was given and waived his Miranda rights and spoke about the conspiracy crime. At the second interview on December 21, 2006, Detective Schoonmaker talked to Mauricio as a potential witness in the bus bench shooting. The third interview on January 10, 2007, by different detectives, was problematic and cannot be reconciled with Miranda, but it was not used at trial in any event. That brings us to the final interview on February 5, 2007, by Detectives Schoonmaker and Lowe. This interview took place after Mauricio's conspiracy case was concluded; it was separate in time; the detectives gave proper Miranda advisements, and Mauricio waived his rights. The detectives specifically explained that they were there to talk to Mauricio about the bus bench shooting. The record shows an independent interview, with the proper Miranda procedures, not a second part of a two-step interrogation which followed a problematic first step.
II. The LWOP Issue
Mauricio contends the trial court erred in declining to exercise its discretion to sentence him to terms of 25 years to life, rather than LWOP. We disagree.
Under section 190.5, subdivision (b), the penalty for defendant convicted of first degree murder with one or more special circumstances found true, who was 16 years of age or older and under the age of 18 years at the time of the commission of the murder, "shall be [LWOP] or, at the discretion of the court, 25 years to life." In short, a term of LWOP is the presumptive punishment for a 16- or 17-year-old special circumstance murderer. As such, the trial court was required to impose an LWOP sentence unless the court, in its discretion, found good reason for imposing the less severe sentence of 25 years to life. (People v. Guinn (1994) 28 Cal.App.4th 1130, 1141-1142.)
The record shows the trial court understood it had discretion to impose a term of 25 years to life, rather than LWOP. Accordingly, the properly focused question for the current appeal is whether the trial court abused its discretion in not choosing the less severe punishment. A trial court abuses its discretion when it renders a decision that is arbitrary, capricious or beyond the bounds of reason under the circumstances. (People v. Ledesma (2006) 39 Cal.4th 641, 705.) We do not find the trial court's decision in Mauricio's current case an abuse of discretion under this standard. The record shows that the trial court weighed a number of factors, including Mauricio's youth and lack of prior criminal history, before imposing the LWOP terms. In determining that the gravity of his crimes outweighed the mitigating factors, the court did not act in an arbitrary or unreasonable fashion. It is not unreasonable to sentence a defendant to an LWOP term when he or she has committed multiple premeditated murders in separate driveby incidents, to benefit a criminal street gang, even when the defendant was 17 years old at the time of the murders. The possibility that another reasonable judge may have opted for the less severe punishment does not establish, as a matter of law, that the decision to impose the more severe punishment was an abuse of judicial discretion.
Mauricio's claim that the trial court, while understanding it had discretion, "failed to properly balance all the relevant factors," is not supported by the record and appears to ask us to conduct an independent balancing of our own. The record shows the trial court looked at all relevant factors and then came down on the side of the more severe punishment based on the nature of the crimes. This was not an abuse of judicial discretion, and we may not substitute our own balancing of factors in place of the trial court's balancing. We understand that Mauricio was only 17 years old, that he did not have a prior criminal record, and that he was not an actual shooter. This does not mean that the nature of the crimes could not outweigh his circumstances.
III. Cruel and/or Unusual Punishment
Mauricio contends his sentence of three consecutive terms of LWOP, plus three consecutive terms of 25 years to life, violates the federal and state constitutional prohibitions against cruel and/or unusual punishment. We disagree.
First, Mauricio's reliance on Graham v. Florida (2010) _____ U.S. _____ (Graham), is misplaced. In Graham, the Supreme Court held as a "categorical" rule that imposing an LWOP sentence on a juvenile defendant who is convicted of a nonhomicide offense violates the federal Constitution's prohibition against cruel and unusual punishment. (Id. at pp. 2023, 2034.) This rule is not helpful to Mauricio because he stands convicted of multiple, premeditated murders.
We are left then to examine Mauricio's punishment under a more general principle of proportionality. Under the Eighth Amendment of the federal Constitution, a court must assess three factors to determine whether a sentence is proportionate to the offense so that it does not constitute cruel and unusual punishment: (1) the gravity of the offense and the harshness of the penalty; (2) sentences imposed for other crimes in the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions. (Ewing v. California (2003) 538 U.S. 11, 22.) Under this analysis, Mauricio's argument fails because he has not presented a comparison of intrastate and interstate punishments for multiple homicide perpetrators.
Under the California Constitution, a court assesses whether a punishment "shocks the conscience and offends fundamental notions of human dignity" based the a number of factors, including: (1) the nature of the offense and/or the offender; (2) a comparison of the sentence with punishments prescribed in California for different offenses; and (3) a comparison of the challenged sentence with punishments prescribed for the same offense in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 424.) Depending on the totality of the circumstances, any of these three factors may support a determination that a sentence is cruel or unusual under the state Constitution. (People v. Mendez (2010) 188 Cal.App.4th 47, 67.)
Mauricio recognizes that the crimes for which he is convicted — three first degree murders committed under special circumstances — are the most serious and violent of all crimes, but he argues his role in the crimes was "minimal" because he was not the actual shooter. Mauricio also cites his lack of a prior criminal record, and the likelihood, due to his age, that he was influenced by peer pressure. He argues the LWOP sentence rings more of retribution than deterrence.
We acknowledge, as did the trial court, all of the factors cited by Mauricio. But at the same time, we share the trial court's perspective that Mauricio's involvement in the crimes was an "integral" part of the shootings. Whatever weight may exist in Mauricio's lack of a criminal record is offset by the fact that he participated in the two driveby shootings involved in this case, the Lueders Park and bus bench shootings, and that he was later caught while engaged in a conspiracy to commit yet a third driveby shooting. We are amply satisfied that the public's need for deterrence outweighs its mere desire for retribution.
We find Mauricio's reliance on People v. Mendez, supra, 188 Cal.App.4th 47 unpersuasive because that case did not involve homicides. (Id. at p. 50.) The same is true of Graham, supra, 130 S.Ct. 2011. In no case cited by Mauricio did a court declare an LWOP sentence to be cruel and unusual for a defendant who was convicted of multiple first degree murders with multiple special circumstances findings.
Mauricio's sentence here was not cruel and/or unusual, in light of the severity of the crimes he committed. (See Harris v. Wright (9th Cir. 1996) 93 F.3d 581, 585 [an LWOP sentence "raises no inference of disproportionality" because it is imposed on a minor murderer]; see People v. Guinn, supra, 28 Cal.App.4th at pp. 1146-1148 [an LWOP sentence is not disproportionate punishment for a minor with a limited criminal record who commits a first degree murder during robbery].)
We understand the United States Supreme Court granted certiorari earlier this month to decide whether the imposition of an LWOP sentence on a minor convicted of homicide violates the Eighth and Fourteenth Amendments' prohibition against cruel and unusual punishment, and whether such a sentence violates the Eighth and Fourteenth Amendments when it is imposed upon a minor who did not personally kill the homicide victim. (See Jackson v. Hobbs, cert. granted Nov. 7, 2011, __ S.Ct. __ .)
IV. The Parole Revocation Fine Issue
Mauricio contends, the People concede, and we agree that the trial court erred in imposing a parole revocation fine under section 1202.45 because he was sentenced to LWOP terms on all three murder counts. (People v. Jenkins (2006) 140 Cal.App.4th 805, 819.)
V. The Restitution Fine Issue
Mauricio contends, the People concede, and we agree that the trial court erred in imposing a restitution fine under section 1202.4 in the amount of $30,000. (See People v. Blackburn (1999) 72 Cal.App.4th 1520, 1534 [the maximum restitution fine that may be imposed in a criminal prosecution is $10,000 regardless of the number of victims or the counts involved].)
VI. The DNA Fine Issue
Mauricio contends, the People concede, and we agree that the trial court erred in imposing a "DNA fine" under Government Code section 76104.7 on each count. (People v. Valencia (2008) 166 Cal.App.4th 1392, 1396.)
VII. The Custody Credits Issue
Mauricio contends he is entitled to credits for an additional 38 days of presentence actual days in custody. We disagree.
Mauricio was arrested on December 4, 2006, when he was found in a car with other gang members and a rifle. A conspiracy case was initiated. He contends that his custody credits in his current triple murder prosecution case should have been calculated from December 4, 2006, even though he was not in custody for any murder offense at that time. We find Mauricio's argument is incorrect. "[C]redit shall be given only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted." (§ 2900.5, subd. (b).) Mauricio's argument on appeal seeks custody credit for time spent as to an offense other than his murder offenses. The record does not disclose the date Mauricio was taken into custody for murder. In any event, the 1,217 days of credit awarded by the trial court were applied in response to a calculation offered by Mauricio's counsel, and it does not appear to be erroneous.
Mauricio first implicated himself in the Lueders Park incident on January 10, 2007. Apparently, the court and counsel used that date as the first day Mauricio was in custody on the murder cases, given that 1,217 days passed between January 10, 2007, and his sentencing on May 11, 2010.
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DISPOSITION
The fines and fees included in the judgment are modified in accord with this opinion. In all other respects, the judgment is affirmed.
BIGELOW, P. J. We concur:
RUBIN, J.
FLIER, J.